Apologies Bill could generate confusion over medical negligence

Laura Ceresa, a member of the Law Society’s Health and Medical Law Committee, will give evidence today before the Scottish Parliament’s Justice Committee.

Ms Ceresa, solicitor at law firm Peacock Johnston, said: “We appreciate the intentions behind this bill and understand the desire to bring about some cultural change, where making a sincere apology does not mean there are grounds to raise a negligence case against a healthcare professional.

“For example, in trying to diagnose a patient, doctors or surgeons may not initially be correct in their assessment and with hindsight, there may appear to be failings of fault. In many cases the ‘bad outcome’ can be due to non-negligent errors and recognised risk of difficult treatment or surgical procedures.

“From a legal perspective we know there are concerns about the consequences of an apology and if it would amount to implied negligence. In practical terms an apology could be misinterpreted by the patient as an admission of liability and they could embark on a potentially lengthy, complex and costly claim.

“However, an acceptance that the treatment might not have progressed as hoped would not necessarily meet the legal test of clinical or medical negligence, leading to the claim failing and further distress for the patient.

“Having legislation, however well intentioned, cannot ensure sincerity and we have questions around what status the apology would have and if there would be any right to review or appeal if someone was not satisfied. We also have questions on how any changes to current practice would be implemented and monitored.”

The Law Society has warned against introducing new legislation which would have limited impact and potential duplication of existing processes.

Ms Ceresa said: “In relation to healthcare professionals, there is currently no legal duty to give an apology or an explanation. However there has already been a move by the NHS towards open acknowledgement when treatment goes wrong.

“The General Medical Counsel already has guidance which requires doctors to ‘respond promptly, fully and honestly to complaints and apologise when appropriate’ and there are similar provisions for the General Dental Council, General Pharmaceutical Council and Nursing & Midwifery Council. Although these are not set out in statute, these are established professional standards and a breach can result in disciplinary action.

“We are not clear therefore what gains the Bill would bring and, since there are already guidelines on this, it may in fact result in duplication of process and remedy.

“I also know from my experience as a solicitor that by the time someone is consulting a solicitor for legal advice, things have usually passed the point where an apology would be sufficient and they are seeking damages for something that has gone wrong. A solicitor’s client who was seeking an apology could be referred to the existing NHS complaints process.

“We believe further consideration should be given to how the Bill might meet its aims, so that if enacted, the legislation would make a beneficial contribution to existing legislation and practice.

“It’s important that these issues can be raised at this stage and we are very pleased to have the opportunity to discuss the Bill with the Scottish Parliament’s Justice Committee.”